Delhi HC: No New Offence to Replace Section 377, Courts Can't Fill Legislative Gaps

• The Delhi High Court has ruled that courts cannot create new offences to replace those omitted by Parliament.
• The removal of Section 377 from the Bharatiya Nyaya Sanhita (BNS) on July 1, 2024, left a significant gap in the law.
• The petitioners have sought a gender-neutral reading of sexual offence provisions under the new criminal code to address the constitutional vacuum created by the absence of clear guidelines for addressing non-consensual sexual acts involving men, transgender individuals, or animals.

We understand your anxiety, but these are legislative policy matters. The offence has to be described. Which is the authority that can do it? It's the legislature.

The Delhi High Court's recent ruling has highlighted a critical issue in India's legal framework: the absence of clear guidelines for addressing non-consensual sexual acts involving men, transgender individuals, or animals. The removal of Section 377 from the Bharatiya Nyaya Sanhita (BNS) on July 1, 2024, left a significant gap in the law, which has been exacerbated by the lack of replacement provisions. This vacuum has created a 'constitutional nightmare' for survivors who do not fit within the narrow man-woman framework that the BNS retains. The petitioners argue that this situation is unacceptable and have sought a gender-neutral reading of sexual offence provisions under the new criminal code.

In its ruling, the Delhi High Court emphasized that courts cannot create new offences to replace those omitted by Parliament. The Bench clarified that legislative policy matters are outside the judicial purview and that defining a new offence is purely a matter for Parliament. This decision has significant implications for public interest litigation (PIL) seeking judicial intervention in legislative gaps. It suggests that courts should not overstep their authority and attempt to fill voids left by Parliament's decisions.

Section 377, which was decriminalized in 2018, continued to apply to non-consensual acts, offences involving minors, and bestiality. However, its residual protection disappeared entirely when it was dropped from the BNS without any replacement clause being introduced. This has left a significant gap in the law, particularly for survivors who do not fit within the narrow man-woman framework that the BNS retains. The petitioners argue that this situation is unacceptable and have sought a gender-neutral reading of sexual offence provisions under the new criminal code.

Lawyers should note that the Delhi High Court has clarified that courts cannot create new offences to replace those omitted by Parliament, emphasizing that legislative policy matters are outside judicial purview. This decision may impact future PILs seeking judicial intervention in legislative gaps.

Source: Original reporting via Delhi HC